//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] QCA 57
mixed. Appeal allowed in part; conviction on count 5 quashed; parties to file and serve written submissions within 14 days on whether to affirm the trial sentence or substitute another sentence warranted in...
The Court of Appeal set aside the conviction for the alternative offence because the trial judge had already taken a not-guilty verdict on the rape charge and discharged the appellant from it before the jury considered the alternative. The Court reasoned that the statutory power to convict on an alternative offence depended on a rape indictment still being before the jury. The mistake did not affect the other convictions. The domestic violence directions were supported by the evidence and statute, and the assault count was properly joined with the other charges. The Court left the sentence question open pending further submissions.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,463 words · generated 08/10/2026
In R v HDD [2026] QCA 57, the Queensland Court of Appeal considered an appeal against convictions arising from offences against the appellant’s young stepchild. The appellant had lived with the child and the child’s mother. The jury found the appellant guilty of six offences and not guilty of a later alleged indecent assault, count 7: [1]-[3].
3 cited instruments linked from this judgment.
The convictions included four sexual offences committed when the child was aged between four and five, an assault occasioning bodily harm when the child was five, and rape when the child was aged between six and eight. Count 5, however, was not ultimately left to the jury as a rape charge. The trial judge concluded there was insufficient evidence of penetration and directed a not-guilty verdict on that count. The judge then discharged the appellant from the rape charge: [47]-[50].
The trial proceeded with the jury being asked to consider an alternative offence associated with count 5. It found the appellant guilty of that alternative offence: [52]-[56]. The appeal challenged, among other things, the domestic violence directions, the handling of the alternative offence, and the inclusion of the assault count on the same indictment.
The Court allowed the appeal in part. It quashed the conviction on count 5, meaning the alternative charge in this case, but held that the error did not affect the other convictions. It rejected the challenges to the directions and joinder: [29], [83], [91], [95]. The Court did not finally determine sentence. It ordered submissions on whether to affirm the trial sentence or substitute another sentence warranted by the convictions that remained: [96]-[100].
The central issue was the effect of the acquittal and discharge on count 5. The Crown’s ability to seek an alternative verdict arose under s 578(1) of the Criminal Code (Qld). That provision allows a person indicted for rape to be convicted of specified alternative offences if the evidence establishes one of them: [36], [63]-[64].
The Court explained that each count on a multi-count indictment is regarded as though it were charged by a separate indictment: [61]-[62]. It then considered what happened when the jury returned the directed not-guilty verdict. Under s 646, an accused found not guilty is entitled to be discharged from the charge of which they were acquitted: [69]. The Court held that, in this context, discharge ended the proceedings for the rape offence and released the appellant from further liability for that offence: [72]-[74].
That conclusion mattered because the alternative-verdict power was not independent of the rape charge. The Court said it depended on an indictment charging rape being before the jury when deliberations commenced: [74]. Once the appellant was discharged from count 5, there was no longer such an indictment before the jury. The jury therefore could not rely on s 578(1) to convict him of an alternative offence: [75]-[76].
The timing of the verdict and discharge was decisive. The judge took the rape acquittal and discharged the appellant before the summing-up and before the jury considered its verdicts on the alternative and other counts: [47]-[56]. The Court explained that the judge could instead have directed an acquittal in the summing-up, explained the available alternative, and taken the verdicts after the jury completed deliberations. It said that sequence would have permitted a verdict on the alternative without prejudice to the appellant: [77]. This was an explanation of a procedurally available approach, not the Court’s decision on the result of the trial as conducted.
The Court separately considered whether the error had consequences for the other convictions. It noted the jury had been directed to consider each charge separately and not to use evidence concerning one charge to determine guilt on another. It also considered that the jury acquitted on count 7, which indicated that it had separately considered the counts: [82]. In the circumstances, the error could not realistically have affected the jury’s reasoning on counts 1 to 4 and 6: [83]. The Court therefore quashed the alternative conviction but left those convictions intact.
On Ground 1, the Court rejected the argument that the domestic violence directions were not called for. The child’s evidence was that the appellant was his stepfather, lived in the home with the child and the child’s mother, and was in a domestic relationship with the mother when the charged and uncharged conduct occurred: [14]. The Court concluded that domestic violence was therefore an issue at trial and that the prosecution was entitled to request directions under s 103T and s 103Z of the Evidence Act 1977 (Qld): [15]. The defence did not identify a good reason not to give them: [16]-[17].
The Court also rejected the claim that the directions were improperly linked to sexual-offence directions and evidence of uncharged acts. It found that the sexual-offence directions were given in the statutory circumstances, including because the child displayed signs of emotion or distress in the recorded evidence and because of how the defence addressed credibility, reporting delay, and the child’s living circumstances: [19]-[24]. The separate direction on uncharged acts limited the use the jury could make of that evidence. In the Court’s view, the order of the directions was logical and did not elevate the uncharged evidence: [25]-[28].
On Ground 3, the Court held that count 4 was properly joined. Section 567(2) permits joinder where offences are founded on the same facts, form part of a series of offences of the same or similar character, or form part of a series committed in prosecution of a single purpose: [60]. The assault was against the same child, was committed in the same general period, and formed part of the series the Court described as involving abuse and control: [93]-[94].
The judgment did not announce a change to the statutory text. Its contribution is an interpretation of how s 578(1) operates alongside s 646 when a trial judge directs an acquittal on the rape count and the accused is discharged before the jury considers the alternative.
Before the ruling, s 578 allowed the jury to consider specified alternatives on an indictment charging rape, without a separate alternative charge being expressly placed on the indictment: [63]-[68]. The Court acknowledged that the purpose of provisions of this kind was to avoid the need to include multiple alternative charges in an indictment: [63]. It also noted earlier authority concerning the operation of such alternative-offence provisions: [64].
After the ruling, the relevant point is that the statutory alternative does not survive independently of the rape indictment. On this Court’s reasoning, where the accused has been discharged from the rape charge under s 646, the necessary basis for s 578 is no longer before the jury: [72]-[76]. The Court’s conclusion turns on the order and timing of the steps in this trial. It does not say that an alternative verdict is unavailable whenever a rape count is not ultimately proved. Rather, it distinguishes between directing the jury to acquit on rape while deliberations continue on the alternative and taking the acquittal and discharge before those deliberations.
The judgment also applies the statutory framework for directions under the Evidence Act. It emphasises that the judge should assess whether the relevant statutory criteria are met in the circumstances of the particular trial: [10]. Here, the evidence of the domestic relationship made domestic violence an issue, and the prosecution requested directions that the Court considered authorised by statute: [14]-[17]. The judgment does not establish a general requirement to give the same directions in every trial involving sexual offending or a domestic relationship. Its reasoning depends on the evidence, requests, and statutory circumstances before it.
On joinder, the Court applied s 567(2) to the facts described at trial. The decision supports the use of the statutory test where offences form a series involving the same complainant and the relevant factual and temporal connections are established. It does not eliminate the statutory criteria or make joinder automatic: [60], [93]-[95].
At [74], the Court said: “The potential liability for an alternative offence under s 578 does not stand alone.” In plain English, an alternative offence under that section depends on the continuing existence of the rape indictment. It is not a separate charge that remains available after the legal basis for the rape count has ended.
At [76], the Court concluded: “the verdict of guilty on the alternative charge was impermissible at law.” This states the consequence of the sequence used at trial. Once the appellant had been discharged from the rape charge, the jury could not later use s 578 to return a guilty verdict on the alternative.
At [77], the Court identified a different sequence: the judge could explain in the summing-up that the evidence did not support rape, direct the jury to acquit on that charge, and explain the alternative offence. The Court said the verdicts could then be taken together after deliberations. In plain English, the order in which the judge dealt with the acquittal, discharge, and alternative verdict mattered.
At [82]-[83], the Court distinguished the invalid alternative conviction from the other counts. It considered the jury directions and the verdicts returned, including the acquittal on count 7, and held that the error could not realistically have affected the jury’s reasoning on counts 1 to 4 and 6. The Court therefore treated the error as requiring the alternative conviction to be quashed without undermining the remaining convictions.
At [29], the Court stated that the domestic violence directions, considered alone or alongside the sexual-offence and uncharged-acts directions, did not cause a miscarriage of justice. That conclusion followed from its assessment of the statutory criteria, the evidence, and the way the judge adapted and ordered the directions: [14]-[28].
At [94], the Court held that count 4 was founded on the same facts as the sexual counts for the purpose of s 567(2). The reasoning was tied to the same complainant, the period of the alleged offending, and the series and purpose the Court identified at [93].
The most direct application arises where a trial includes a rape indictment and a statutory alternative under s 578, but the trial judge takes a not-guilty verdict on rape and discharges the accused before the jury deliberates on the alternative. In that setting, R v HDD holds that the later alternative verdict cannot be supported by s 578 because the rape indictment is no longer before the jury: [72]-[76].
The decision also matters where a trial judge is considering whether to give domestic violence directions under the Evidence Act. Relevant features in this case included evidence of a domestic relationship, the appellant’s position as the child’s stepfather, and his residence with the child and the child’s mother at the relevant times: [14]-[15]. The Court’s analysis also considered whether the prosecution had requested directions and whether the defence identified a good reason not to give them: [15]-[17].
For sexual-offence directions, the judgment illustrates the importance of matching directions to statutory criteria and the evidence and submissions at trial. The Court referred to the child’s presentation in recorded evidence, cross-examination about delayed reporting, arguments about changes in the child’s account, and questions about the child’s living arrangements: [19]-[24]. Its conclusion was that the directions were tailored to those matters and did not cause a miscarriage: [28]-[29].
For joinder, the relevant pattern is a count said to be part of a series of offences against the same person, with a connection in time and purpose. Here, the assault was alleged in the same broad period as the sexual offences and was against the same child: [93]-[94]. The statutory test remains the one in s 567(2), as set out at [60].
The judgment was delivered on 2 April 2026. The supplied judgment text does not identify any later court decisions applying, distinguishing, or otherwise treating R v HDD. No later treatment can therefore be established from this source.
The judgment itself identifies authorities it relied on or cited. It applied MDP v The King [2025] HCA 24 in assessing whether the error affected the other convictions: [83] and footnote 32. It cited R v PBT [2025] QCA 152 on the need to consider carefully whether statutory directions are called for: [10] and footnote 4. It cited DAO v R (No 3) [2016] NSWCCA 282 regarding the treatment of each count as if charged by a separate indictment: [62] and footnote 19.
For the alternative-offence framework, it referred to R v Cooling [1990] 1 Qd R 376, R v Coureas [1967] QWN 5, and R v GS [2005] QCA 376: [63]-[68] and footnotes 20-23. It cited Jensen v The Queen (1991) 52 A Crim R 279 and R v Maxwell [1990] 1 WLR 401 on the trial judge’s discretion concerning an alternative charge: [85] and footnotes 33-35. These are authorities as described and used in the judgment, not evidence of subsequent treatment of HDD.
The immediate question left open was sentence. Because the appellant was properly convicted on counts 1 to 4 and 6 but not on the alternative charge, s 668F allowed the Court either to affirm the sentence or substitute another sentence warranted by the remaining convictions: [96]-[97]. The Court ordered written submissions within 14 days: [99]-[100]. The supplied text does not include the later sentencing decision or tell whether the sentence was affirmed or changed.
The Court also noted that the trial judge’s sentencing remarks were not before it. The count 6 sentence may have been fixed to reflect the total criminality, including the alternative offence, but the Court could not determine that from the material described: [98]. That was the reason the parties were asked to address the appropriate sentence on the convictions that remained.
The judgment’s reasoning on s 578 is framed around the procedural sequence in this case. It explains the consequence of taking the acquittal and discharge before deliberations on the alternative. It does not resolve every possible sequence involving a directed acquittal, an amended indictment, or a different form of verdict. The Court noted that amendment or inclusion of particulars could have been considered, but the trial judge did not take that course: [88]-[90].
Finally, the judgment does not establish how later appellate courts will apply its reasoning to different statutory provisions or different forms of discharge. Its holding is tied to ss 578 and 646 of the Queensland Criminal Code and to the fact that the appellant had been discharged from the rape charge before the jury considered the alternative: [69]-[76].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v HDD [2026] QCA 57
PARTIES: R / v / HDD / (appellant)
FILE NO/S: CA No 98 of 2025 / DC No 127 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Ipswich – Date of Conviction: 4 April 2025 (Power KC DCJ)
DELIVERED ON: 2 April 2026
DELIVERED AT: Brisbane
HEARING DATES: 11 February 2026; 2 March 2026
JUDGES: Bowskill CJ, Bradley JA, Wilson J
ORDERS: Appeal allowed in part. Conviction on count 5 quashed. Parties to file and serve written submissions within 14 days on whether the Court should affirm the sentence passed at the trial or substitute another sentence warranted in law by the appellant’s conviction on counts 1 to 4 and 6.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – where the appellant was found guilty after trial of rape of a child, with the aggravating circumstance that it was a domestic violence offence – where the appellant was found guilty of five other offences against the same child, including four sexual offences and the offence of assault occasioning bodily harm – where the child was the defendant’s step-child and lived with the appellant – where various domestic violence directions were given by the trial judge under part 6A, division 3 of the Evidence Act 1977 (Qld) – where the appellant contends that the preconditions for giving domestic violence directions did not arise – where the appellant contends that by linking the domestic violence directions to evidence of the appellant’s sexual interest in the child, including uncharged acts, a miscarriage of justice arose – whether the criteria for giving the domestic violence directions were met – whether the domestic violence directions were called for in the circumstances of the trial / CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – ALTERNATIVE VERDICTS – where the appellant was charged with rape, among other charges – where the trial judge directed the jury to acquit the appellant of the charge of rape in the course of the trial – where an alternative charge of procuring a child to commit an indecent act was left to the jury – where the appellant was convicted on the alternative charge – whether conviction on the alternative charge was impermissible at law following the directed acquittal – whether leaving the alternative charge to the jury and taking a verdict on that charge imperilled the jury’s verdicts on any of the other counts of which the appellant had been charged / CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where the appellant was charged with the offence of assault occasioning bodily harm on the same indictment as various sexual offences – where the offences were committed against the same person – where the appellant contends that the joinder of charges occasioned a miscarriage of justice – whether the offences on the indictment were founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose / Acts Interpretation Act 1954 (Qld), Sch 1 / Criminal Code (Qld), s 3, s 567, s 578, s 646, s 668F / Evidence Act 1977 (Qld), pt 6A div 3, pt 6B div 3 / DAO v R (No 3) [2016] NSWCCA 282, cited / Jensen v The Queen (1991) 52 A Crim R 279; [1991] WASC 74, cited / MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, applied / R v Cooling [1990] 1 Qd R 376, cited / R v Coureas [1967] QWN 5, cited / R v Derrick (1984) 29 NTR 9, cited / R v Downing [2018] QCA 343, cited / R v Hill [1982] Tas R 1; (1982) 7 A Crim R 161, cited / R v Maxwell [1990] 1 WLR 401, cited / R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited / R v PBT [2025] QCA 152, cited
COUNSEL: K M Hillard, with S C Franklin, for the appellant / E L Kelso for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 9 April 2025, the learned trial judge sentenced the appellant to imprisonment for nine years for the rape of a child aged between six and eight years, with the aggravating circumstance that it was a domestic violence offence (count 6).1
Concurrently with that nine year sentence, the appellant was sentenced to serve lesser periods of imprisonment for five other offences against the same child, committed before the rape. Four of these were sexual offences the appellant committed when the child was between four and five years of age,2 including procuring the child to commit an indecent act (the alternative charge), which is of specific relevance to Ground 2 in this appeal. The other offence was assault occasioning bodily harm to the child (count 4),3 committed when the child was aged five. It is of specific relevance to Ground 3 in the appeal.
The sentences followed a trial in which a jury found the appellant guilty of the six offences. The jury found the appellant not guilty of another indecent assault of the child (count 7), alleged to have been committed much later, when the child was aged 16. The jury delivered these verdicts on the fourth day of the appellant’s trial.
The appeal grounds
The appellant contended that this Court should quash his conviction on the alternative charge, set aside his convictions on the five remaining counts (counts 1, 2, 3, 4 and 6), and order a new trial on counts 1, 2, 3 and 6, and a separate new trial on count 4.
The appellant’s final amended notice of appeal identified three grounds:Ground 1: that there was a miscarriage of justice occasioned by an error by the trial judge in directing the jury on domestic violence;Ground 2: that there was a miscarriage of justice occasioned by the trial judge leaving the alternative charge to the jury; andGround 3: that there was a miscarriage of justice occasioned by the inclusion of count 4 on the indictment at the trial and/or a failure to direct the jury about a motive to lie.
Within each ground, the appellant raised distinct contentions.
With respect to Ground 3, on 11 February 2026, at the hearing of the appeal, the appellant’s counsel informed the Court that, on reviewing the matter, they were unable to identify anything that expressly indicated a motive for the child to lie. Counsel were right not to press this contention.
On 2 March 2026, at a further hearing of the appeal, the Court gave the appellant leave to amend Ground 2 to add a contention: that “[t]he verdict as taken on count 5 was impermissible at law.”
By the end of the further hearing, the appellant had advanced seven contentions: two in respect of Ground 1; four in respect of Ground 2; and only one in respect of Ground 3. It is convenient to consider the contentions under each ground.
Ground 1 – domestic violence directions
The directions a trial judge may give to a jury about domestic violence and about sexual offences, respectively, are subject to the provisions in part 6A, division 3 and part 6B, division 3 of the Evidence Act 1977 (Qld) (the Act). As this Court has previously identified, a trial judge should carefully consider whether a direction under either division is called for in the circumstances of a particular trial, and carefully consider the statutory criteria for any relevant section providing for a direction.4
For the appellant, it was contended the trial miscarried because:the “pre-conditions” for giving domestic violence directions under part 6A, division 3 “did not arise” at the trial; and“linking” the domestic violence directions to evidence of the appellant’s sexual interest in the child, including uncharged acts, caused a miscarriage of justice.
These two contentions became apparent at the hearing of the appeal. They were not identified in the notice of appeal or made clear in the appellant’s written outline. It then also became apparent that the first contention was based on the erroneous assumption that the trial judge gave the domestic violence directions on the judge’s own initiative.5 In fact, the prosecution asked the trial judge to direct the jury about domestic violence.6
Were domestic violence directions called for, and were the criteria met?
The first contention under Ground 1 should be rejected for the following reasons.
The child gave evidence about count 6 and count 7, which were charged on the indictment as domestic violence offences. The child also gave evidence about the other counts and of uncharged acts by the appellant.7 The child’s evidence was that, at the times the appellant did each of the charged and uncharged acts: the appellant was the child’s stepfather; the appellant was living in the appellant’s home with the child and the child’s mother; and the appellant was in a domestic relationship with the child’s mother.
In those circumstances, domestic violence was an issue at the appellant’s trial.8 The prosecution was entitled to ask the trial judge to direct the jury about domestic violence, in the terms provided for under s 103Z(1)(a), (c) and (d), and s 103Z(2)(a), (b), (c) and (d) of the Act.9
After discussion with the defence, the trial judge gave the jury the requested directions. The trial judge was able to give those directions, unless there were good reasons for not doing so.10
The appellant’s counsel, like defence counsel at the trial, did not identify any good reason not to give those directions.
The “linking” of the domestic violence directions to sexual offences directions and uncharged acts directions
The sexual offences directions
The appellant was on trial for sexual offences.11 So, the trial judge was required to give any one or more of the sexual offence directions in subdivision 3 of part 6B, division 3 of the Act (subdivision 3) in either of two circumstances, namely:if there was a good reason to give the direction; orif requested to give the direction by a party to the proceeding, unless there was a good reason not to give the direction.12
Following a request from the prosecution and after discussion with the defence, the trial judge gave the jury two sexual offence directions within subdivision 3 in the terms provided for under s 103ZV(a) and (b).
The appellant’s counsel, like defence counsel at the trial, did not identify any good reason not to give these directions.
The jury had watched and listened to the video-recordings in which the child gave evidence about each of the sexual offences the subject of counts on the indictment. In doing so, the child showed signs of emotion or distress. This was a good reason to give these subdivision 3 directions.
The trial judge also gave the jury directions within subdivision 4 of part 6B, division 3 of the Act (subdivision 4), in the terms provided for under s 103ZY(2), s 103ZZ(2)(a) and (b), and s 103ZZA(2). As to these directions:The trial judge was obliged to give the s 103ZY(2) directions because, in addressing the jury, defence counsel had suggested that the child was not a credible or reliable witness because there were differences in the child’s account over time between his interview with police, when aged 16, and his evidence to the Court at the preliminary hearing, when he was a young adult.The trial judge was obliged to give the s 103ZZ(2)(a) and (b) directions because, in cross-examination, defence counsel had questioned the child about a failure to report the offending at school, to doctors, or family members, when he was aged four, five or six to seven years.The trial judge was obliged to give the s 103ZZA(2) directions because, in cross-examination, defence counsel had questioned the child:about staying at the appellant’s home (with his mother) and returning to live there after some time living in the child’s father’s home;in a way that tended to suggest that, after sexual offences the subject of the indictment were alleged to have been committed, the child had other safe places to go, including to the child’s father’s home; andabout staying at the appellant’s home rather than attending school on a Friday, knowing the appellant would be returning home at about the time one of the sexual offences was alleged to have been committed.
Direction on the use of evidence of uncharged acts
After giving the domestic violence and the sexual offence directions, the trial judge directed the jury about the limited use they could make of evidence of uncharged acts. The direction was necessary, given the child had given evidence about those acts. His Honour gave the direction in conventional and appropriate terms.
By giving the uncharged acts direction after the directions about domestic violence and sexual offences, the trial judge adopted a logical sequence. The jury was to assess the credibility and reliability of the child’s evidence guided by the relevant directions, including those on domestic violence and sexual offences. If the jury was satisfied that any of the child’s evidence of uncharged acts was credible and reliable, the jury could make limited use of it as his Honour directed. The direction did not “elevate” the evidence of uncharged acts. On the contrary, it instructed the jury of the limits on the use of that evidence.
The combination of the directions
It is not uncommon that sexual offences occur in the context of a relationship marred by domestic violence. As in the appellant’s trial, sexual offences can be charged with the aggravating circumstance of being domestic violence offences. The dual nature of such allegations is not a good reason to decline to direct a jury about domestic violence in the manner for which Parliament has made specific provision. Nor is it a good reason to not give a sexual offence direction. The appellant’s submission to the contrary should be rejected.
The trial judge crafted all these directions by reference to the statutory directions in the Act. His Honour adapted them to make clear the parts of the child’s evidence and the defence counsel’s submissions to which they were directed and the child’s circumstances at the relevant times, according to the evidence. His Honour separated and ordered the directions to avoid confusion or complication.
Conclusion on Ground 1
Ground 2 – verdict on count 5 and the alternative charge
Ground 2 concerns count 5 (rape of the child) and the alternative charge (procuring the child to commit an indecent act). The appellant’s counsel sought to advance the ground by four contentions, each of which was said to have occasioned a miscarriage of justice. These were:the appellant was deprived of an “outright acquittal” on count 5 by the trial judge leaving the alternative charge to the jury to decide;the trial judge left the alternative charge to the jury;the trial judge amended the particulars of count 5 without considering whether to grant the Crown leave to amend or “the unfairness to the appellant”; andthe verdict taken on count 5 was impermissible at law.
These four contentions are closely connected. Some overlap. All may be resolved by consideration of the fourth to determine whether the verdict as taken on count 5 was impermissible at law.
Relevant events in the course of the trial
The jury indictment and the particulars of the offence
The particulars of count 5 of the indictment, were that “[t]he defendant told the [child] to penetrate his anus with the [child’s] penis. The [child] did so.”
This was supported by video-recorded evidence of a police interview with the child.14
Trial judge raises count 5 and its alternative for consideration
In the course of cross-examination at a preliminary hearing,15 it became clear that the child was uncertain as to whether penetration had occurred.
After the recordings had been played, in the absence of the jury, the trial judge raised for the parties’ consideration that “indecent treatment of a child under 16 is a natural alternative” to the charge of rape in count 5. It is accepted that his Honour was referring to the offence defined in s 210(1) of the Code, and to s 578(1) of the Code, which provides:
“Upon an indictment charging a person with the crime of rape, the person may be convicted of any offence, if established by the evidence, defined in section 210(1), 210A, 215, 216, 217(1), 218, 222 or 352.”
“I struggle to see how it would be possible for a jury to be satisfied of penetration … It’s probably still a jury issue, but I would think unlikely.”
“Okay. I won’t be making any ruling on that now, but if that could be considered and we’ll deal with that in due course.”
The defence case
On the third day of the trial, the Crown closed its case. The appellant did not advance a “no case” submission on count 5, or any other count. In opening the defence case, defence counsel told the jury that the appellant “will give evidence to you indicating categorically that nothing of a sexual nature occurred at all.”
The appellant was called and gave evidence. At the outset, the appellant told the Court, “I’ve never sexually abused [the child] in any way.” The appellant’s defence counsel led no specific evidence from him about count 5.
In cross-examination, the prosecutor put to the appellant each of the particulars of count 5, using the child’s words from the police interview. This included that the appellant told the child to “put” his penis in the appellant’s anus, and that the child “pointed” his penis into the appellant’s anus and “pushed” against him. The appellant denied each of these allegations. There was no re-examination.
Trial judge again raises count 5 and the alternative charge
On the third day of the trial, just before lunch, defence counsel closed the defence case.
In the absence of the jury, defence counsel raised count 5, taking his Honour to parts of the police interview and the child’s preliminary hearing evidence, noted above. Defence counsel told the trial judge that he accepted that there was a “natural alternative” to the charge of rape in count 5. The following exchange then took place:
“His Honour: Now, in order to get to the natural alternative, the jury would have to have a directed acquittal in relation to count 5.
Defence: Yes.
His Honour: In theory, the Crown could choose to seek to amend the indictment but - - -
Defence: Either way.
His Honour: Sorry?
Defence: Either way.”
“His Honour: Okay. Well, there’s two ways in which it can be done. The sort of more neutral way is for the prosecution to ask for the return of the indictment and to endorse it with the alternative charge.
Prosecutor: Yes.
His Honour: And discontinue count 5.
Prosecutor: Yes.
His Honour: Now, the other is that the jury enter a directed verdict in relation to count 5, but are then told that, in fact, there remains an alternative, which is indecent treatment of a child. It’s just simpliciter. I don’t – my understanding is it doesn’t [add] the extra - - -
Prosecutor: Aggravations.
His Honour: - - - aggravations don’t attract – they don’t attach to a natural alternative.
Prosecutor: That’s my understanding as well.
His Honour: All right. And so what do you wish to do?
Prosecutor: Well, your Honour, I would seek the return of the indictment and to handle it that way, unless … my learned friend has an objection.
His Honour: All right. Well, I think it probably should be done in the presence of the jury, I think, so it’s clear. The prosecution ask for the return of the indictment, they endorse it in front of the jury, and that way, the jury see that prosecution have elected to discontinue it and only proceed with the lesser charge.”
“Defence: Well, I’d prefer, of course, a directed verdict, but - - -
His Honour: No. No. Well, I mean the – if you wish to have a directed verdict, then I think that’s – you’re within your right to do that. I just understood that you weren’t pressing either way.
Defence: My preference would be a directed verdict, but - - -
His Honour: All right.”
“His Honour: Look, I think that defence are entitled to a directed verdict - - -
Prosecutor: Certainly.
His Honour: - - - in the circumstances where it’s got to this stage - - -
Prosecutor: Yes.
His Honour: - - - after the close of evidence.
Prosecutor: Thank you, your Honour. I have no submissions further.
His Honour: All right.
Prosecutor: Thank you.
His Honour: Thank you. All right. Thank you. So that’ll occur immediately after lunch, so at 2.15.”
The directed verdict and the discharge
“… that means that you would not be retiring to consider your verdict on count 5 [the charge of rape] because as a matter of law, I have determined that question.”
“That is not the end of the matter for count 5, because under our law, if there is an allegation that a person has raped a child, an alternative that exists – even if it’s not specified on the indictment is that the same conduct constituted indecent treatment of a child under the age of 16.”
The trial judge explained that he would (later) give the jury directions about that alternative (which he did). His Honour then directed the jury to return a verdict of not guilty on count 5. The associate then took the jury’s verdict on count 5. It was “not guilty”.
His Honour then spoke to the appellant directly:
“I record that you have been found not guilty of the charge of rape and are discharged in relation to that offence.”
The directions to the jury on the alternative charge
“by operation of law, is now a charge of indecent treatment of a child by procuring. So the dates remain the same, the place remains the same, the allegation set out in the particular remains the same. The difference is that you would have to be satisfied of those facts, but not that there was actual penetration.”
Later in the summing up (in explaining the burden of proof), his Honour directed the jury that “the defendant may be convicted only if you find that he is guilty of the offence charged, or in the case of count 5, the alternative, which you are now aware is the charge”.
The trial judge gave detailed directions about the elements of the alternative charge.
The verdict
When the verdict was taken, the jury was asked, “in respect of count 5, do you find the defendant … guilty or not guilty of indecent treatment of a child under 16?” The verdict was “guilty”.
The trial judge proceeded to convict and sentence the appellant on each of the offences of which the jury had found him guilty, including the alternative charge.
The effect of discharging the appellant
The basis on which the appellant contends that the verdict on the alternative charge was “impermissible at law” is that the appellant had already been acquitted of count 5 and discharged, before the addresses and the judge’s summing up; thus, it was argued, there was nothing left for the jury to consider. In effect, the argument was that the directed verdict of not guilty on count 5, and the discharge of the appellant at that time, was the end of the matter and there was no scope for the operation of s 578 beyond that point.
Section 560(1) of the Code provides that:
“When a person charged with an indictable offence has been committed for trial and it is intended to put the person on trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.”16
“.. set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved … as may be necessary to inform the accused person of the nature of the charge.”17
“Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.”18
That provision applied in this case. There were a number of offences charged “in the same indictment”. As required by s 567(3), “each offence charged” was “set out in the indictment in a separate paragraph called a count…”.
Although the indictment contained seven counts, “each count is regarded as if charged by a separate indictment”.19
Chapter 61 of the Code (Effect of indictment) contains a number of facultative provisions, designed to avoid the need to include multiple alternative charges in an indictment.20 One of these provisions is s 578 which, as already noted, by sub-s (1) provides that:
“Upon an indictment charging a person with the crime of rape, the person may be convicted of any offence, if established by the evidence, defined in section 210(1), 210A, 215, 216, 217(1), 218, 222 or 352.”
Without the need for any alternative charge to be expressly identified on the indictment, the effect of s 578(1) was that the jury could return a verdict of guilty and the Court could convict the appellant of one of the alternatives mentioned in that section, provided there was evidence upon which it would be open to the jury to convict.21 This is why the arrest of an accused upon a charge of rape has been regarded as the commencement of the prosecution upon an alternative count;22 it being difficult to see how a person could otherwise be convicted of an offence without being prosecuted for it.23
The trial of an accused person begins when the person is called upon to plead to each offence with which he or she is charged, as set forth in the indictment (the arraignment).24 By pleading not guilty, the person is “deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury”.25 When the jury has been sworn, the accused person is placed “into the charge of the jury”.26 This reflects the statutory requirement for the trial judge to ensure the jury is informed “in appropriate detail, of the charge contained in the indictment” and “of the jury’s duty on the trial.”27
At the start of the trial, the “issue raised by” the appellant’s plea of not guilty to, relevantly, the charge of rape the subject of count 5 on the indictment was whether the jury was satisfied, beyond reasonable doubt, of each of the elements of rape, having regard to the complainant’s evidence particularised as forming the basis of count 5.
From the exchanges after the child’s s 21AK hearing evidence was played, the defence and the trial judge knew that the prosecution would seek to have the alternative charge left for the jury’s deliberation, expressly on the basis that, in law, the child’s evidence supported conviction for that lesser offence. So, the appellant’s guilt of the lesser alternative offence was also an issue in the trial.
It was not necessary for the Crown to amend the indictment to allow the jury to return such a verdict. By s 578, Parliament enabled juries to consider the identified alternative charge without requiring the Crown to allege alternative charges on the indictment.
“If the jury find that the accused person is not guilty, or give any other verdict which shows that the person is not liable to punishment, the person is entitled to be discharged from the charge of which the person is so acquitted.”28
“charge, of an offence, means a charge in any form, including, for example, the following –
…
an indictment.”
“Offence” is defined in s 2 of the Code to mean “an act or omission which renders the person doing the act or making the omission liable to punishment”.
There was no discretion involved in discharging the appellant under s 646. Once the directed verdict of not guilty was given by the jury, the appellant was “entitled” to be discharged. The consequence was that the appellant was discharged “from the charge of which [he was] acquitted”, being the charge of rape in count 5 on the indictment before the Court.
In context, because it follows from a finding by the jury that the accused person is not guilty (that is, an acquittal), the effect of being discharged from the charge of rape, under s 646, is that the appellant was discharged (or released or freed29) from liability to any further prosecution for that offence.30 In other words, the discharge of the appellant from the charge of rape meant the “end” of the proceedings for that offence.31
Being discharged (or released or freed) from liability to any further prosecution for the offence of rape the subject of count 5 on the indictment necessarily carried with it discharge from the potential liability arising by operation of s 578 of the Code for conviction of an alternative offence. The potential liability for an alternative offence under s 578 does not stand alone. It depends upon there being “an indictment charging a person with the crime of rape” before the jury at the time they commence their deliberations.
Keeping in mind that, although able to be joined together for trial, each count is regarded as if charged on a separate indictment, after the appellant was discharged from the charge of rape the subject of count 5, there was no longer “an indictment charging [him] with the crime of rape” before the jury. The appellant was no longer “in the charge of the jury” on count 5. In short, in so far as count 5 was concerned, there was no charge before the Court on which s 578(1) could operate to allow the jury to convict the appellant of any lesser offence established by the evidence.
Accordingly, the verdict of guilty on the alternative charge was impermissible at law.
This outcome is the result of proceeding to take the directed verdict on count 5, and discharging the appellant from the charge the subject of count 5, before summing up and inviting the jury to consider its verdict. The trial judge could have instructed the jury, in the summing up, that there was no evidence to support the charge of rape, and that he was directing them to return a verdict of not guilty on that charge, but then explain the alternative charge available. When the jury had completed their deliberations, the directed verdict could have been taken together with the verdict on the alternative charge and the other counts, in the conventional manner. This would not have occasioned any prejudice to the appellant. It would have allowed the Court to take a verdict from the jury on the alternative charge.
The appellant’s other contentions under Ground 2
Whether leaving the alternative charge to the jury occasioned a miscarriage of justice
Once the appellant was discharged on count 5, the alternative charge should not have been left to the jury. Doing so was a wrong decision on a question of law. The conviction and sentence on the alternative charge should be quashed on that basis.
It is necessary to consider possible effects beyond the appellant’s conviction on the alternative charge, to determine whether there was a miscarriage of justice affecting the trial and the convictions on counts 1, 2, 3, 4, and 6.
As to that matter:the guilty verdict on the alternative charge shows the jury accepted the child’s evidence of conduct sufficient to constitute indecent dealing;the jury had been directed that it could use the evidence of the alternative charge only to decide whether the Crown had proved the elements of that particular offence, beyond reasonable doubt;the jury was directed to consider each charge separately, evaluating the evidence related to that particular charge to decide whether they were satisfied, beyond reasonable doubt, that the prosecution had proved the essential elements of that offence;the jury was directed that the evidence in relation to the separate charges was different and not to use the evidence in relation to one charge to decide whether the appellant was guilty of any other count on the indictment;the jury’s not guilty verdict on count 7 indicates the jury separately considered the evidence in respect of each count, as his Honour had directed;the jury had to consider the evidence on the six other counts, five of sexual offences against the child and one of a violent offence against the child. The jury also had before it evidence of the uncharged acts going to the background of the relationship between the appellant and the child; andhad the trial judge instructed the jury as to the directed verdict on count 5 in the course of the summing up and only taken that verdict and the verdict on the alternative charge once the jury had completed its deliberations, no error would have been made. The error that we have found was made was, in this sense, a technical error, but one which did not involve unfairness or prejudice to the appellant.
In the circumstances of the trial that occurred, the trial judge’s error in leaving the alternative charge to the jury and taking a verdict on that charge could not realistically have affected the reasoning of the jury to the verdict of guilty that it returned on any of counts 1, 2, 3, 4, and 6 on the indictment.32 The appellant was properly convicted on those other counts. While the conviction on the alternative charge should be quashed because of the error of law, that error did not cause a miscarriage of justice that affected any of the other convictions.
Whether the appellant was deprived of an “outright acquittal” on count 5
The appellant’s submissions on this contention sought to advance a case that, before the appellant was discharged on count 5, he had a right to prevent the jury considering the alternative charge.
Before the discharge on count 5, it was a matter for the discretion of the trial judge whether the alternative charge should have been left to the jury.33 This discretion is conferred by s 578.34 In this case, the trial judge had indicated a view that the alternative charge, being a lesser offence, was open on the evidence, ought to be left to the jury, and, inferentially, that it was in the interests of justice to do so.35 With respect, his Honour’s views were sound.
The pending alternative charge did not cause the appellant any unfairness. The appellant could not have made assumptions during the Crown case or his own defence case that might leave him surprised or otherwise deny him a fair opportunity to meet the Crown’s case on an alternative charge.36 Experienced defence counsel did not raise any objection. The appellant’s counsel did not identify any basis on which leaving the alternative charge to the jury, in the conventional way, could have caused any prejudice to the appellant.
Given the operation of s 578, it is nonsensical to speak of an “outright acquittal” when a verdict is taken on the charge of rape. The appellant’s contention to that effect should be rejected.
Whether there was an amendment to the particulars without leave or consideration of unfairness to the appellant
The trial judge did not amend the particulars of count 5. Nor did his Honour give the Crown leave to amend the particulars. His Honour directed the jury about the elements of the alternative charge and the facts of which they would need to be satisfied beyond reasonable doubt to find the appellant guilty of the alternative charge.
In the circumstances of the trial, his Honour could have given the Crown leave to amend the indictment,37 or to include the relevant particulars,38 but did not do so. It is apparent from the record that the trial judge accepted it was appropriate to proceed in the manner urged upon him by defence counsel (to take a directed verdict and leave the alternative charge to the jury).
For the reasons at [81] to [83] above, his Honour’s directions to the jury about the alternative charge did not cause a miscarriage of justice; and, for the reasons at [86] above, there was no unfairness.
Conclusion on Ground 2
Ground 3 – inclusion of count 4
The appellant contended that the inclusion of count 4 on the indictment at the trial occasioned a miscarriage of justice. The submission was not developed beyond assertion.
The appellant committed count 4, an assault of the child occasioning bodily harm, when the child was between four and five years of age. This was the same period when counts 1 to 5 were alleged to have been committed, and close in time to count 6. The seven offences on the indictment were a series of alleged offences against the same child with a single purpose of abusing and controlling the child in whom the appellant had a sexual interest.
It follows that count 4 was founded on the same facts as the six sexual offences that were counts 1 to 3 and 5 to 7 on the indictment. The inclusion of count 4 on the indictment with the other counts was authorised by s 567(2) of the Code.
The appellant fails on Ground 3.
Should the sentence imposed for count 6 be affirmed?
“If it appears to the Court that an appellant, though not properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court may either affirm the sentence passed at the trial or pass such sentence, whether more or less severe, in substitution therefor, as it thinks proper, and as may be warranted in law by the conviction on the count or part of the indictment on which it considers the appellant has been properly convicted.”
The Court must consider whether to affirm the sentence imposed after the trial or substitute another sentence.
The trial judge directed that the appellant is to serve the sentences for counts 1, 2, 3, 4, and the alternative charge concurrently with the sentence for count 6, which was the most serious of the offences. His Honour’s sentencing remarks are not before the Court in this appeal. His Honour may have fixed the sentence for count 6 to reflect the total criminality of the appellant’s offending, including the alternative charge, in the manner approved in R v Nagy.39
The parties should have a short period in which to make any written submissions on whether the Court should affirm the sentence passed at the trial or substitute another sentence warranted in law by the conviction on counts 1 to 4 and 6.
Final disposition
Appeal allowed in part.
Conviction on count 5 quashed.
Parties to file and serve written submissions within 14 days on whether the Court should affirm the sentence passed at the trial or substitute another sentence warranted in law by the appellant’s conviction on counts 1 to 4 and 6.
Criminal Code (Qld) (Code), s 349, s 564(3A). ↩
12 months’ imprisonment for procuring a child to commit an indecent act with the aggravating circumstances that the child was under 12 years and under the appellant’s care, Code s 210(1)(b), (3) and (4) (count 1); five years’ imprisonment for procuring a person, without consent, to commit an act of gross indecency, with the aggravating circumstance that the act included the person penetrating his anus with a thing, Code, s 352(1)(b)(i) and (3)(c) (count 2); 18 months’ imprisonment for indecent treatment of a child, with the aggravating circumstances that the child was under 12 years and under the appellant’s care, Code, s 210(1)(a), (3) and (4) (count 3); and two years’ imprisonment for procuring a child to commit an indecent act, Code, s 210(1)(b) (the alternative charge). ↩
Code, s 339(1). ↩
R v PBT [2025] QCA 152 at [23] (Bowskill CJ, Bond JA agreeing). ↩
Act, s 103V(2). ↩
Act, s 103T(2). ↩
The appellant telling the child he wanted to “fuck” him; asking the child to perform oral sex; tying the child naked to a cupboard; threatening to kill the child if he told anyone about what the appellant had done to the child; and grabbing the child’s testicles, at times other than that within the scope of count 7. ↩
Act, s 103T(1). See also Domestic and Family Violence Protection Act 2012 (Qld), s 8 (meaning of domestic violence), s 13 (meaning of relevant relationship), which apply in relation to the phrase “domestic violence” in the Act.
R
HDD [2026] QCA 57
(2025) 99 ALJR 969
Appeal allowed in part; conviction on count 5 quashed; parties to file and serve written submissions within 14 days on whether to affirm the trial sentence or substitute another sentence warranted in law by the appellant’s convictions on counts 1 to 4 and 6.
The trial judge was able to give these directions under subdivision 3 or 4 in summing up to the jury,13 as his Honour did.
In circumstances where the jury had given the directed verdict of not guilty in relation to the charge of rape the subject of count 5, s 646 of the Code provided:
Before reaching a conclusion on the consequence of this conclusion for the outcome of the appeal, it is appropriate to consider the appellant’s three other contentions under Ground 2.
Act, s 103T(2). ↩
Act, s 103T(3). ↩
Act, s 103ZO(1)(b). Count 4 was the only non-sexual offence on the indictment. ↩
Act, s 103ZQ(1). ↩
Act, s 103ZQ(2) and (3)(b). ↩
Admitted pursuant to the Act, s 93A. ↩
As required by s 21AK(1) of the Act. ↩
Emphasis added. ↩
Emphasis added. ↩
Emphasis added. ↩
DAO v R (No 3) [2016] NSWCCA 282 at [30] (Meagher JA; Hall J agreeing), citing Latham v The Queen (1864) 5 B & S 635, 642-643 (Blackburn J); 122 ER 968, 970-971. ↩
R v Downing [2018] QCA 343 at [21] (McMurdo JA; Fraser and Gotterson JJA agreeing), referring to R v Cooling [1990] 1 Qd R 376, 381 (Derrington J). ↩
R v Coureas [1967] QWN 5; R v GS [2005] QCA 376 at [45]. ↩
R v Cooling [1990] 1 Qd R 376, 380 (Derrington J), citing R v Jack (1894) 6 QLJ 60. ↩
R v Cooling [1990] 1 Qd R 376, 377 (Thomas J; Ambrose J agreeing). ↩
Code, ss 597C(1) and (2); Criminal Practice Rules 1999 (Qld) (CPR), r 46. ↩
Code, s 604. ↩
CPR, r 48. ↩
Jury Act 1995 (Qld), s 51. ↩
Emphasis added. ↩
Cf R v Derrick (1984) 29 NTR 9 at 13; cf R v Hill (1982) 7 A Crim R 161 at 165-166. ↩
This is to be contrasted, for example, with the more limited form of discharge provided for by s 590(4) of the Code (if an indictment is not presented before the expiry of the relevant time period, the person is “entitled to be discharged from the consequences of his or her committal”). As to this provision, see Re Jenkin [1994] 1 Qd R 266. ↩
See for example the definition of “end” in s 590AD of the Code. ↩
MDP v The King [2025] HCA 24; (2025) 99 ALJR 969 at [3] (Gageler CJ), [106]-[107] (Gleeson, Jagot and Beech-Jones JJ), [33] (Gordon and Steward JJ) and [44], [46] (Edelman J). ↩
Jensen v The Queen (1991) 52 A Crim R 279, 281 (Malcolm CJ), citing R v Naylor (1910) 5 Cr App R 19, 21 (Baron Alverstone CJ), and R v Vella [1938] St R Qd 289, 290 (Latham CJ). ↩
R v Coureas [1967] QWN 11, 12 (Gibbs J; Lucas J agreeing). ↩
R v Maxwell [1990] 1 WLR 401, 408B, F (Lord Ackner; Lord Keith of Kinkel, Lord Templeman, Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreeing), approving the conclusions in R v Fairbanks [1986] 1 WLR 1202, 1205-1206 (Mustill LJ; Hodgson and Wood JJ agreeing). ↩
R v Downing [2018] QCA 343 at [21] (McMurdo JA, Fraser and Gotterson JJA agreeing). ↩
Code, s 572. ↩
Code, s 573. ↩
[2004] 1 Qd R 63, 72 at [39] (Williams JA). ↩